Franciskovic v G and J Tenni Pty Ltd

In the case of Franciskovic v G and J Tenni Pty Ltd, the dispute centred on the existence and status of an easement that dated back to the 1920s. This easement provided access from a main street to a third property, traversing three separate properties. The case came before the court following the construction of a new road, which now provided access to all three properties in question. The central issue was whether the easement had been extinguished, specifically whether it had been abandoned since at least 1984 and whether it could be considered obsolete given the changes in the neighbourhood.

The legal issues the court had to decide included the criteria for determining whether an easement has been abandoned or extinguished under statutory provisions, particularly in light of the new road that rendered the original easement obsolete. The court also had to consider the impact of the passage of time and the transformation of the neighbourhood on the status of the easement.

The court found that the easement had indeed been abandoned since at least 1984, and that it had become obsolete given the construction of the new road. The physical absence of the easement, coupled with the significant changes in the surrounding area, led the court to conclude that the easement was no longer necessary or functional. The court extinguished the easement under section 181 of the Property Law Act 1974 (Qld), reflecting the practical and legal obsolescence of the easement.

In its final orders, the court extinguished two specified easements, one affecting Lot 1 of RP 703159 in favour of the first respondent’s property, and the other affecting Lot 1 of RP 703158. No order was made as to costs.